Supreme Court may hear Texas abortion case

Supreme Court justices will meet behind closed doors Monday to start the process of deciding which cases to take up this term, with all eyes on a challenge to a Texas abortion law that could roil the presidential race just months before voters go to the polls.

The case, Whole Woman’s Health v. Cole, centers on a series of far-reaching restrictions on Texas abortion providers and clinics, which led to the closure of about half of the state’s abortion facilities. It promises to be the most significant abortion case in at least two decades, and could inject divisive social issues into the presidential race at a key moment.

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If the justices hear the case after their term officially begins Oct. 5, they are expected to focus on two of the most significant restrictions in the Texas law — that abortion providers must have admitting privileges at a nearby hospital and that abortions be performed in facilities that meet the same building standards as ambulatory surgical centers. Many other states — mostly red states where opposition to abortion is strong — have also imposed such restrictions.

Supporters say such laws ensure that women terminating pregnancies will get safe, quality care. But abortion rights advocates say that the regulations are unnecessarily onerous, often forcing clinic closures and that they are designed to restrict abortion, not make it safer.

The laws are part of a movement within many conservative states to increase the number of regulations on doctors and clinics that perform abortions. Arguments over the case will likely turn on whether the state has imposed an "undue burden" on women’s access to abortion.

In 1992, the court ruled in Planned Parenthood v. Casey that states could impose some restrictions on abortion as long as they did not pose an undue burden on a woman's access to the procedure. A ruling in this case would be only the second time since the Casey decision that the high court has reviewed such limits.

“We’re quite hopeful that the Supreme Court will step in and tell states that they need to stop passing sham laws,” said Jennifer Dalven, director of the Reproductive Freedom Project at the American Civil Liberties Union. “If you get out a map, Louisiana, Oklahoma, Mississippi, Alabama — they all have admitting privilege laws like in this case. There is little doubt that if the court [approves of Texas’s law], we’ll see more and more of that.”

Opponents of the laws say they violate a woman’s constitutionally protected right to obtain an abortion and are really designed to restrict access to abortion. In Texas, where only parts of the law are in effect, about half of the 41 abortion clinics have already closed because of the requirements. Some provisions were put on hold by the high courts' pending review.

The laws' supporters argue the courts have already ruled — notably in the Supreme Court’s 2007 Gonzales v. Carhart decision that upheld the so-called Partial-Birth Abortion Ban Act — that some restrictions on abortion are legal.

“The question is whether the Supreme Court will continue to recognize the role of states in protecting [quality health care] or require federal judges to act as medical boards,” said Steven Aden, senior counsel at the Alliance Defending Freedom, which filed briefs in support of Texas.

He argues there is a record of state legislatures — not judges — overseeing the standards of medical care in their states, such as the codes regulating hospitals.

The state laws regulating abortion providers differ slightly but nearly two dozen require that abortion facilities meet the standards of ambulatory surgical centers, according to the Guttmacher Institute, a research group that supports abortion rights. Thirteen states have substantial requirements for physicians who perform abortions, such as admitting privileges or an affiliation with a local hospital.

One key sign that the justices are likely to accept the case is that after the 5th Circuit Court of Appeals ruled in June that much of the Texas law could go into effect, the Supreme Court issued a 5-4 order that blocked it until it could decide whether to hear the case.

If the justices turn down the case, most of the law would go into effect immediately. Court watchers say it is unlikely the court would weigh in if it wasn’t at least interested in hearing more about the case.

In addition, a petition to the high court to hear a similar case in Mississippi has been on hold since the last term, a relatively long time for a petition to wait. Many other states’ laws have been challenged in court as well, and those, too, are expected to reach the Supreme Court unless there is a ruling on Texas before then.